1

Filed 7/8/16 In reL.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re L.B. et al., Persons Coming Under 

the Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.J. et al.,

Defendants and Appellants.

E065322

(Super.Ct.Nos. J256007 &

J256190 & J256191)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin

and Cheryl C. Kersey, Judges. Affirmed in part; reversed in part with directions.

Emery El Habiby, under appointment by the Court of Appeal, for Defendant and 

Appellant M.J.

Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant J.B.
2

Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel, for 

Plaintiff and Respondent.

M.J. (mother) is the biological mother of L.B. (a girl, born July 2014), M.L. (a 

girl, born June 2013), and Ju.B. (a boy, born January 2012) (collectively, the children). 

J.B. (father) is the presumed father. Both mother and father (collectively, parents) appeal 

from the juvenile court’s order terminating their parental rights under Welfare and 

Institutions Code1section 366.26. Mother does not challenge the substantive findings 

made by the juvenile court, but contends that the court’s orders must be reversed because 

plaintiff and respondent San Bernardino County Department of Children and Family 

Services (the Department) failed to comply with the notice requirement of the Indian 

Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Father contends that the court 

erred in terminating his parental rights because he had a beneficial relationship with the 

children under section 366.26, subdivision (c)(1)(B)(i). We agree with mother that the 

Department failed to comply with ICWA, and remand the matter with directions to the 

juvenile court to ensure the Department’s compliance with ICWA’s notice requirement. 

We affirm the orders of the juvenile court in all other respects.

FACTUAL AND PROCEDURAL HISTORY

A. BENEFICIAL RELATIONSHIP BACKGROUND

Mother has general neglect referrals dating back to 2008. In July 2013, the 

Department investigated a referral. Mother and her six children were living in a filthy 

 

1 All statutory references are to the Welfare and Institutions Code unless 

otherwise specified.
3

house. She was not paying rent and the children lacked sufficient food. By September 

18, 2013, the Department substantiated mother’s neglect. The four older children were 

placed with a non-offending father. Mother engaged in a voluntary family maintenance 

plan for M.L. and J.B., addressing her mental health issues and daily use of marijuana

and alcohol. The siblings had features suggestive of fetal alcohol syndrome. Father 

resided out of state and was uninvolved in the parenting. Mother’s family maintenance 

plan was terminated in November 2013 when her whereabouts became unknown.

On July 29, 2014, the Department received a referral indicating mother’s severe 

neglect of L.B., who was born at 31 weeks of gestation and tested positive for 

methamphetamine and opiates. Mother had a history of drug and alcohol use while 

pregnant, and six other children were removed by the Department. Father had not visited 

L.B. A relative reported that parents were looking for a place to live. On August 14, 

2014, the Department detained L.B. out of parental custody in a local hospital. M.L. and 

J.B. were then ages one and two and one-half, respectively; their whereabouts were 

unknown.

On August 18, 2014, the Department filed a section 300 petition for L.B. The 

petition addressed mother’s mental health issues and parental substance abuse, and 

father’s failure to protect L.B. (§ 300, subd. (b)); and indicated that parents’ whereabouts 

were unknown at the time (§300, subd. (g)).

On August 19, 2014, at the detention hearing for L.B., parents were present when 

the court detained L.B. and set a jurisdictional and dispositional hearing for September 9, 

2014.
4

In August of 2014, parents separated after engaging in domestic violence with 

each other. The Department located mother with M.L. and J.B., and detained M.L. and 

J.B. in foster care that month. An aunt indicated that she took care of M.L. and J.B. 

because mother was irresponsible. M.L.’s immunizations were out of date, and she 

suffered a burn on her arm that was not properly treated.

On September 2, 2014, the Department filed section 300 petitions for M.L. and 

J.B. The petitions addressed mother’s mental health issues, parental substance abuse, and 

domestic violence. (§300, subd. (b).) On September 3, 2014, at the detention hearing for 

the two children, the court detained M.L. and J.B. in foster care and set a jurisdictional 

and dispositional hearing for September 24, 2014. Eventually, the court scheduled a 

mediation to address jurisdictional and dispositional issues, and consolidated M.L.’s and 

J.B.’s cases with L.B.’s case.

The Department recommended that the court sustain the section 300 petitions, 

remove the children from parental custody, and offer family reunification services to 

mother and the presumed father of the children. Mother abused substances and received 

a psychotropic medication prescription at a crisis clinic. M.J. was born positive for 

marijuana. In utero, L.B. was exposed to methamphetamine, alcohol, marijuana, 

nicotine, and Norco. Mother admitted she began smoking marijuana at age 11 and used 

methamphetamine thereafter, including with father. Parents stole drugs and were drug 

runners. Father denied abusing substances, but admitted to smoking “dope”; father tested 

positive for marijuana in August and September 2014.
5

Parents denied engaging in domestic violence. Mother, however, stated that father 

“smacked” her in the face. Father did not recognize that this was violent. He also did not 

understand that he failed to protect the children.

Father lived in New York from March to December 2013; he sought placement of 

the children with him there. At the time, he was 56 years old and had 14 children. Nine 

of father’s children were over the age of 18. Two of his children were ages seven and 11, 

and lived with their mother. Father did not finish high school, but he had worked in 

carpentry, brick laying, and the railroad and roofing industries. Most recently, father 

worked at an animal shelter through a welfare program. Parents were known to “squat” 

at properties and not pay rent. The Department placed the children in different foster 

homes, and looked for a single home that could take the three siblings.

Mother had a warrant for driving without a license. Although father admitted that 

he was arrested for possessing an unregistered handgun, his criminal record indicated 

multiple arrests for battery, lewd conduct with a child, statutory rape, contributing to the 

delinquency of a minor, and possession of marijuana for sale. Father’s only conviction, 

however, was for possession of marijuana for sale.

On September 24 and November 19, 2014, the court sustained section 300 

allegations regarding mother’s mental health issues and substance abuse, father smoking 

marijuana and failing to protect the children, and parents engaging in domestic violence. 

The court removed the children from parents, found father to be the presumed father, 

ordered family reunification services for parents, maintained the children in foster care, 

and set the six-month review hearing for April 6, 2015.
6

The report for the April 6, 2015, six-month review hearing recommended 

termination of family reunification services. Father denied he needed substance abuse 

treatment, yet tested positive for marijuana and missed random tests in March 2015. 

Father attended weekly supervised visits, but seemed unable to give the children adequate 

attention and care. He attended therapy; more counseling was recommended.2 Father 

investigated enrolling in substance abuse treatment in March 2015, but conveyed to the 

social worker that the program was too long “so [the Department] can all (expletive) off.”

On April 6, 2015, parents failed to appear for the review hearing. Therefore, the 

court set a short cause trial for April 21, 2015. The Department’s addendum report stated 

that father tested positive for marijuana and missed a random drug test in April 2015. 

Father also became more aggressive with the Department and the caregivers. Mother 

appeared under the influence at visits.

On April 21, 2015, parents attended the short cause trial. The court therefore set a 

long cause trial for May 8, 2015.

On May 8, 2015, parents attended the trial. Father’s counsel provided evidence 

that father enrolled in a substance abuse treatment program and reportedly had a positive 

attitude toward recovery. After reviewing the evidence and listening to argument from 

mother’s counsel and father’s counsel, the court terminated family reunification services 

and set a section 366.26 hearing for September 8, 2015.

 

2 The factual background focuses on father more than mother because of the 

different issues raised in their respective briefs.
7

In the section 366.26 report, the Department requested a 90-day continuance to 

allow the children to be transitioned to an adoptive home and for the Department to 

perform an adoption assessment. After services were terminated in May 2015, parents 

had transportation difficulties and attended only two visits, which were described as 

“mediocre.” The Department reported, “there seems to be a disconnection between the 

children and parents.” On September 8, 2015, the court continued the section 366.26 

hearing to December 7, 2015.

On October 1, 2015, father filed a section 388 petition requesting return of the 

children to father, or family reunification services. The court summarily denied the 

petition, finding it lacked a prima facie case.

The Department filed an addendum section 366.26 report. In the report, the 

Department recommended termination of parental rights to permit the children to be 

adopted by Mr. and Mrs. D. The children were placed with the prospective adoptive 

parents on October 22, 2015, and adjusted quickly. This was their third placement. The 

two older children would approach the prospective adoptive parents to receive hugs, and 

enjoyed the attention they received at the home. When the prospective adoptive parents 

returned home, the children ran to them, yelling, “dad dad” and “mama.” L.B. was very 

clingy and loved to be held. The prospective adoptive parents reported that the children 

fit right into their home and appeared to be happy. The prospective adoptive mother 

expressed, “They are great little kids and I love them all!” She also stated that “every kid 

should have a chance. With the right environment, they can blossom into special 

people. . . . God led us to have them in our home.”
8

The prospective adoptive parents married in 2010. The prospective adoptive 

father was a police officer. Previously, he worked as a child counselor in a group home. 

The prospective adoptive mother was a court office assistant for the superior court. They 

stated they had a great family structure and good balance. They had no medical issues 

and no use of tobacco or drugs. They reported infrequent social use of alcohol. They 

intended to meet the social needs of the children through their large families, church and 

school.

For parents, the juvenile court ordered weekly supervised visits, two hours in 

duration. The prospective adoptive parents resided in Fresno, but the visits were to be 

held at an agency office in Riverside. Parents had trouble securing reliable 

transportation. From May to September, they attended only two visits. From September 

to November 2015 father attended visits more regularly than mother. Again, the quality 

of the visits was described as mediocre since there seemed to be a disconnect between 

parents and the children. Father also paid more attention to L.B. than to M.L. or J.B.

On December 7, 2015, parents attended the section 366.26 hearing; trial was set 

for January 6, 2016. 

A Department addendum report indicated the children appeared bonded with the 

prospective adoptive parents. The children were healthy, well-mannered, and happy. 

The prospective adoptive parents took the children to medical appointments and 

connected with services, apparently to resolve language and motor-skill delays found in 

the children.
9

On January 6, 2016, at the section 366.26 trial, the court admitted the Department

reports into evidence, parents testified, the court listened to argument, and then rendered 

a judgment.

Mother testified that she disagreed with the termination of her parental rights. She 

attended supervised visits, but missed visits due to transportation issues. The children 

called her “mommy” and did not want the visits to end. J.B. and M.L. told her they loved 

her. L.B. gave her kisses.

Father testified that M.L. and J.B. lived with him until three weeks before they 

were removed from mother, but L.B. never lived with him. He attended each visit until

the children were moved. When visits were in Riverside, they conflicted with his classes. 

He did not visit the children in Fresno as he was unfamiliar with that city. The children 

called him “daddy,” and were excited to see him. He brought them food, played with 

them, and changed diapers for M.L. and L.B. He guessed that the children did not like 

leaving the visits because they tried to get him to take them home. He was religious and 

did not use drugs.

Counsel for mother and father each argued that their clients had beneficial 

relationships with the children, an exception to adoption. The children’s counsel argued 

that the parent/child bond did not apply. The children were young, adoptable and doing 

extremely well in their placement. The Department’s counsel concurred with the 

children’s counsel.

The juvenile court found that the children were adoptable. They adjusted to their 

new placement and were bonded with their prospective adoptive parents. From October 
10

2015 to January 6, 2016, parents missed visits, but that was excusable since the children 

lived far away. However the court noted that before the children moved to Fresno, from

May to September 2015, parents only attended two visits, and the quality of the visits was 

mediocre. The court also noted that father became aggressive and exhibited negative 

behavior at visits, and mother may have been “under the influence.” Visits were sporadic 

and always supervised. Parents failed to prove that they had beneficial relationships 

constituting exceptions to adoption. Hence, the court terminated parental rights. The 

court also advised parents of their appeal rights.

B. ICWA NOTICING BACKGROUND

On August 18, 2014, the Department initiated the dependency for L.B. On 

September 2, 2014, the Department initiated dependencies for J.B. and M.L. The Indian 

Child Inquiry Attachments (ICWA-010) filed with the section 300 petitions indicated that 

the children had no known Indian ancestry.

On August 19, 2014, at L.B.’s detention hearing, parents filed Parental 

Notification of Indian Status forms (ICWA-020) indicating that neither parent had Indian 

ancestry. In oral statements, mother confirmed that she had no Indian ancestry. Father, 

however, stated that his grandmother was Cherokee. He provided his grandmother’s 

name but did not know her date of birth. The court set L.B.’s jurisdictional and 

dispositional hearing for September 9, 2014. At the detention hearing for J.B. and M.L., 

mother was present but not father. Mother filed an ICWA-020 indicating she had no 

Indian ancestry. She orally advised the court that neither she nor father had Indian 

ancestry.
11

The jurisdictional and dispositional report for L.B. stated, “mother indicated she 

may be affiliated with the Blackfoot or Cherokee tribes. The father . . . indicated he may 

have Native American heritage.” However, father had stated previously that his 

grandmother was Cherokee. The jurisdictional and dispositional report for J.B. and M.L. 

stated mother told the court that she had no Indian heritage, and father stated that “there 

may be Indian Heritage.”

On August 20, 2014, for L.B.’s case, the ICWA clerk mailed the Notice of Child 

Custody Proceeding for Indian Child forms (ICWA-030) by certified mail, noticing the 

three federally recognized Cherokee tribes and single federally recognized Blackfeet 

Tribe, the BIA, Secretary of the Interior, and parents, regarding the hearing set for 

September 9, 2014. On September 4, 2014, the Department filed a report for the court’s 

inspection in L.B.’s case reflecting ICWA notice. The ICWA-030s identified L.B. and 

parents with first and last names, and included mother’s maiden name, respective dates of

birth, current and former addresses. The forms stated the Cherokee and Blackfeet 

heritage stemmed from father’s relatives. For mother, no tribe was stated but the BIA 

was listed, suggesting mother’s possible Indian heritage.

As relating to L.B., paternal and maternal grandmothers were stated on the ICWA030, along with their maiden names, current and former addresses, birthdates and 

locations of birth. For the paternal grandmother, her date of death and the state where she 

died were indicated. She reportedly had Blackfeet heritage. “No information available” 

was stated for the maternal grandfather, but substantial information was provided for the 

paternal grandfather, who was deceased, but had Cherokee heritage. Two maternal great-
12

grandmothers and paternal great-grandmothers were also stated. As to the paternal greatgrandmothers, the forms indicated that they were deceased, one in the “1900s; New 

York,” the other in Maryland. The one from New York had Blackfeet heritage. The one 

from Maryland, the one who father had named in court, had Cherokee heritage. Two 

paternal great-grandfathers were also stated. One of them had Cherokee heritage and 

died in Maryland in the 1960s. The other paternal great-grandfather had Blackfeet 

heritage and died in New York in the 1980s.

The ICWA-030 forms were substantially complete as to L.B. When the 

Department did not have the requested information, it stated, “No information available.” 

Correspondence from the Cherokee Nation and United Keetoowah and of Cherokee 

Indians stated L.B. was not considered an “Indian child” in those tribes.

On September 22, 2014, the Department filed a report for the court’s inspection in 

L.B.’s case, indicating that no tribe confirmed membership or eligibility for membership 

in the tribe. Correspondence from the Cherokee Tribe of North Carolina and Blackfeet 

Tribe indicated that L.B. was not an Indian child.

On September 24, 2014, the court sustained part of the petition allegations for the 

three siblings, and set the six-month review hearing for April 6, 2015. 

On October 14, 2014, the ICWA clerk mailed the ICWA-030s on behalf of J.B. 

and M.L. to the BIA, Secretary of the Interior, and parents, noticing them for the sixmonth review hearing scheduled for April 6, 2015. On October 16, 2014, the Department

filed a report allowing the court to inspect the ICWA noticing documents. The ICWA030s were substantially complete, as with the ICWA-030 for L.B.’s case, but the BIA 
13

was stated as parents’ tribe of heritage, and the form omitted the Blackfeet and Cherokee 

tribes concerning father’s heritage. No notice was sent to either of the two tribes.

On November 17, 2014, the Department filed another report for court inspection 

reflecting ICWA noticing provided in the cases for J.B. and M.L.

On November 19, 2014, the court sustained the balance of the allegations for the 

siblings, addressed disposition issues, and confirmed the review hearing. At the 

November 19, 2014, hearing, by adopting the findings in the jurisdictional and 

disposition report, the court found that ICWA may apply and ICWA noticing 

requirements were initiated. However, on November 6, 2014, a report by the ICWA 

clerk was filed indicating no affirmative response of tribal membership was received, 

hence, ICWA did not apply. On November 6, the court signed a proposed order finding 

that ICWA did not apply. The attorneys all received the report and proposed 

order/finding; they posed no objections.

On January 8, 2015, the Department filed an ICWA report. The Department

advised that 65 days had passed since the BIA and Secretary of the Interior had been 

notified of J.B.’s and M.L.’s proceedings. The report summarized the notice sent and 

received. Attached correspondence from the BIA indicated that the BIA does not 

determine tribe eligibility. On January 8, 2015, the juvenile court signed a proposed 

order, which had been presented with the report, finding that ICWA did not apply. The 

parties did not object.
14

On May 8, 2015, at the consolidated six-month review hearing, the trial court 

terminated services, set the section 366.26 hearing, and provided parents with writ rights. 

No party raised any ICWA issues. No writs were filed.

On January 6, 2016, the court held a consolidated section 366.26 trial. The court 

terminated parental rights and provided parents with their appellate rights. No ICWA 

issues were raised.

On February 2, 2016, parents filed their notices of appeal.

DISCUSSION

A. THE ICWA NOTICE WAS INADEQUATE

Mother contends that both sets of ICWA notices failed to identify mother’s tribal 

affiliation with the Cherokee and Blackfeet tribes. Therefore, mother asserts lack of 

compliance with ICWA inquiry and noticing requirements mandates reversal. 

“Congress enacted ICWA to further the federal policy ‘“that, where possible, an 

Indian child should remain in the Indian community . . . .”’” (In re W.B. (2012) 55 

Cal.4th 30, 48.) “When applicable, ICWA imposes three types of requirements: notice, 

procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to 

know that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ . . . the social 

services agency must send notice to the child’s parent, Indian custodian, and tribe by 

registered mail, with return receipt requested. . . . [¶] Next, after notice has been given, 

the child’s tribe has ‘a right to intervene at any point in the proceeding.’ . . . [¶] Finally, 

an enforcement provision offers recourse if an Indian child has been removed from 
15

parental custody in violation of ICWA.” (Id. at pp. 48-49.) “Thorough compliance with 

ICWA is required.” (In re J.M. (2012) 206 Cal.App.4th 375, 381.)

Of concern here is the notice requirement. If an agency “knows or has reason to 

know that an Indian child is involved” in a dependency proceeding, the agency must send 

notice of the proceeding to, among others, a representative of all potentially interested 

Indian tribes. (§ 224.2, subd. (a).) “[F]ederal and state law require that the notice sent to 

the potentially concerned tribes include ‘available information about the maternal and 

paternal grandparents and great-grandparents, including maiden, married and former 

names or aliases; birthdates; place of birth and death; current and former addresses; tribal 

enrollment numbers; and other identifying data.’ [Citations.] To fulfill its responsibility, 

the Agency has an affirmative and continuing duty to inquire about, and if possible 

obtain, this information. [Citations.] Thus, a social worker who knows or has reason to 

know the child is Indian ‘is required to make further inquiry regarding the possible Indian 

status of the child, and to do so as soon as practicable, by interviewing the parents, Indian 

custodian, and extended family members to gather the information required in paragraph 

(5) of subdivision (a) of Section 224.2 . . . .’ [Citation.] That information ‘shall include’ 

‘[a]ll names known of the Indian child’s biological parents, grandparents, and greatgrandparents, or Indian custodians, including maiden, married and former names or 

aliases, as well as their current and former addresses, birthdates, places of birth and death, 

tribal enrollment numbers, and any other identifying information, if known.’ [Citation.] 

Because of their critical importance, ICWA’s notice requirements are strictly construed.” 

(In re A.G. (2012) 204 Cal.App.4th 1390, 1396-1397.)
16

In this case, mother claims that the Department failed to comply with ICWA 

because the notices failed to properly identify the tribes of heritage for each parent. In its 

response, the Department agrees with mother.

Here, as summarized in detail ante, as to L.B., the Department sent ICWA notices 

to Blackfeet and Cherokee tribes relating to father’s claim of Indian ancestry. However, 

no ICWA notices were sent to any Indian tribes regarding mother’s alleged Indian 

ancestry. As to M.L. and J.B., there was no reference to any tribe and no notice was sent

to any tribe. Although mother initially claimed that neither parent had any Indian 

ancestry, the Department was fully aware that father had claimed Indian heritage in 

L.B.’s case. Moreover, the jurisdictional and disposition report for M.L. and J.B. noted 

that although mother denied Indian heritage, father indicated that he may have Indian 

heritage. ICWA notices were only sent to the BIA and Secretary of the Interior, which is 

insufficient notice when a federally recognized tribe of heritage has been named by either 

parent. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1202.)

Therefore, based on the above, the trial court’s findings that proper notice was 

given under the ICWA, and/or whether ICWA applies are not supported by substantial 

evidence. A limited reversal and remand to clarify and cure any ICWA noticing defects 

is warranted. 
17

B. THE PARENTAL BENEFIT EXCEPTION DID NOT APPLY

Father claims that the juvenile court erred when it terminated his parental rights 

because the parental benefit exception applied.3 

In general, at a section 366.26 hearing, if the juvenile court finds that a child is 

adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, 

however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & 

(c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies 

when “termination would be detrimental to the child” because “[t]he parents have 

maintained regular visitation and contact with the child and the child would benefit from 

continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)

“When applying the beneficial parent-child relationship exception, the court 

balances the strength and quality of the parent-child relationship in a tenuous placement 

against the security and sense of belonging that a stable family would confer on the child. 

If severing the existing parental relationship would deprive the child of ‘a substantial, 

positive emotional attachment such that the child would be greatly harmed, the 

preference for adoption is overcome and the natural parent’s rights are not terminated.’” 

(In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)

“‘[F]or the exception to apply, the emotional attachment between the child and 

parent must be that of parent and child rather than one of being a friendly visitor or 

friendly nonparent relative, such as an aunt.’” (In re Jason J. (2009) 175 Cal.App.4th 

 

3

 Mother joins in father’s argument.
18

922, 938.) The parent must show more than frequent and loving contact or pleasant 

visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “‘A biological parent who 

has failed to reunify with an adoptable child may not derail adoption merely by showing 

the child would derive some benefit from continuing a relationship maintained during 

periods of visitation with the parent. [Citation.] A child who has been adjudged a 

dependent of the juvenile court should not be deprived of an adoptive parent when the 

natural parent has maintained a relationship that may be beneficial to some degree, but 

that does not meet the child’s need for a parent.’” (Jason J., at p. 937.)

“The parent contesting the termination of parental rights bears the burden of 

showing both regular visitation and contact and the benefit to the child in maintaining the 

parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This 

court must affirm a juvenile court’s rejection of these exceptions if the ruling is supported 

by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review 

“the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and 

reasonable inferences to uphold the court’s ruling.” (In re S.B. (2008) 164 Cal.App.4th 

289, 297.) Because Mother had the burden of proof, we must affirm unless there was 

“indisputable evidence [in her favor, which] no reasonable trier of fact could have 

rejected.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

In this case, father failed to meet the first requirement of the exception—that he 

regularly visited the children. (§ 366.26, subd. (c)(1)(A).) Here, father had some 

transportation issues that occasionally interfered with his ability to visit the children. The 

court did not consider missed visits (when the children’s change in placement was to a 
19

remote location) when the court determined that father’s visits were sporadic. The court 

noted, “[l]et me begin by staying I know the children were placed in Fresno in October so 

I am not going to deal with the lack of visitation from October 22nd to the present day 

because I understand the hardship on [parents], so I want to make it clear to all the parties 

that is not factoring into the Court’s decision.” Although father testified that he visited 

regularly with the children, the court went on to comment on the sporadic visits father 

had with the children during the pendency of this dependency. We note that it is the trial 

court’s role to assess the credibility of witnesses and to weigh the evidence to resolve 

conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Here, based 

on the evidence presented and weighing the credibility of the witnesses, the court 

determined that father did not regularly visit the children. 

Even if father visited regularly and consistently, the beneficial parental 

relationship exception requires both regular visitation and benefit to the child. Here, 

father has failed to establish benefit to the children.

The second requirement for the parental benefit exception to apply requires that 

father prove that the children would benefit from continuing the relationship. (§ 366.26, 

subd. (c)(1)(A).) “The existence of this relationship is determined by ‘[t]he age of the 

child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or 

‘negative’ effect of interaction between parent and child, and the child’s particular 

needs.’” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H. 

(1994) 27 Cal.App.4th 567.)
20

In this case, at the time of the contested section 366.26 hearing, the children were 

ages one and one-half, two and one-half, and four years old. When they were initially 

removed, M.L. and J.B. were ages one and two and one-half years old, respectively. L.B. 

was detained at birth and never resided with father. She spent her entire life either in the 

custody of the Department or under its supervision. The other two siblings spent only a 

year or two out of the Department custody. Accordingly, the majority of the children’s 

lives were spent out of father’s custody.

Although father characterizes parents as the “only constant parental figures” for 

the children, the record shows otherwise. As noted ante, L.B. was detained at birth. She 

had spent 16 months in foster care by the time of the section 366.26 hearing. Father did 

not visit L.B. at the hospital in the two weeks after her birth, and father never had custody 

of L.B. As for the other children: M.L. spent approximately 14 months in parental 

custody, and 16 months out of parental custody; and J.B. spent approximately two and 

one-half years in parental custody, and 16 months out of parental custody, when the 

section 366.26 hearing was held. Father, however, was not the primary caregiver for 

M.L. and J.B.; the primary caregiver was mother. Father resided on the east coast for 

several months. Moreover, parents did not have a stable relationship; as examples, father 

doubted his paternity as to L.B., mother engaged in a voluntary family maintenance plan 

alone before the dependency commenced, parents had split up for some time due to 

domestic violence, and father resided out of state for a period of time and frequently 

traveled out of state. Moreover, parental visits were descried as “mediocre,” since there 

was an apparent disconnect between parents and the children. 
21

Furthermore, the children needed a permanent and stable placement—which is the 

required focus of the section 366.26 hearing. Here, the children have already suffered 

instability. They were initially split up for some time, and resided in three foster care 

placements. When parents had custody of the children, they did not have stable housing. 

Instead, they squatted at various properties. The children’s prospective adoptive parents 

not only provide them with stability in housing, they also provide the children with 

stability in their daily lives. The prospective adoptive parents take the children to 

medical appointments and connect the children with services to resolve developmental 

delays. The children are bonded with the prospective adoptive parents and express

affection. The children hug the prospective adoptive parents, call them “dad dad” and 

“mama,” and love to be held by them. Moreover, the children need “a home environment 

free from the negative effects of substance abuse,” which is recognized as “a necessary 

condition for the safety, protection and physical and emotional well-being” of children. 

(§ 300.2.) 

Mother admitted she began smoking marijuana at age 11, and used 

methamphetamine thereafter, including with father. Mother and father stole drugs and 

were drug runners. Father denied abusing substances but admitted to “smoking dope,” 

and tested positive for marijuana in this case. Parents also denied engaging in domestic 

violence, yet, mother stated that father “smacked” her in the face. Father did not see this 

act as being violent. Dissimilar to parents, the prospective adoptive parents do not live 

substance-abusing lifestyles, do not use tobacco or drugs, and consume alcohol rarely on 
22

social occasions. They intend to meet the children’s social needs through their families, 

church and school events. 

Based on the above, we find there is substantial evidence to support the juvenile 

court’s finding that father failed to meet his burden of proof to establish the beneficial 

parental relationship exception applied in his case.

Father’s reliance on In re Amber M. (2002) 103 Cal.App.4th 681, is misplaced. In 

Amber M., the appellate court held the lower court erred in finding that an exception to 

adoption did not apply where the mother maintained regular visits with the children, and 

the psychologist, therapists, and court-appointed special advocate unanimously stated that 

mother had demonstrated the existence of mother’s beneficial parental relationship, 

which outweighed the benefits of adoption. (Id. at pp. 689-691.) In this case, there are 

no such facts or evidence to support father’s beneficial parental relationship with the 

children. As noted in detail ante, father failed to meet the threshold requirement of 

demonstrating regular visitation with the children.

Father’s reliance on In re S.B., supra, 164 Cal.App.4th 289 is also misplaced. In 

that case, the father “complied with every aspect of his case plan,” and maintained his 

sobriety and consistently visited with his child. (Id. at p. 293.) The father’s physical and 

emotional health problems, however, prevented him from reunifying with his child. 

Although the child was placed with her grandmother, who wanted to adopt her, a bonding 

study showed that the child had a “moderate” and “fairly strong” bond with her father. 

The agency recommended termination of parental rights, but hoped that the grandmother 

would allow the father to visit. The juvenile court found that there was no evidence that 
23

it would be greatly detrimental to terminate the child’s relationship with the father and 

terminated parental rights. (Id. at p. 296.) The father appealed and the appellate court 

agreed with the father finding that the child had a “substantial, positive emotional 

attachment” with the father. (Id. at pp. 293, 301.)

This case is distinguishable. Here, father had no medical issues preventing him 

from reunifying with the children. Moreover, unlike the father in In re S.B., father 

resisted reform as he continued to engage in substance abuse and minimized his role in 

the removal of the children. Although he viewed his visits with the children as positive, 

the Department reported to the contrary. Father was not parental with the children, he did 

not adequately tend to them during supervised visits, and continued to bring unhealthy

food to the visits even after he had been asked not to bring such items. 

In sum, father has the burden to establish the applicability of the beneficial 

parental relationship exception in the lower court; on appeal, he has the burden of 

showing that the juvenile court’s ruling was an abuse of discretion. We conclude that 

father has failed to meet this burden.

DISPOSITION

The juvenile court’s finding that ICWA is not applicable is vacated. The case is 

remanded to the juvenile court with directions to ensure the Department has complied 

with the notice requirements of ICWA. If, after new notices, any of the Cherokee or 

Blackfeet tribes claim the children are eligible for membership and seek to intervene, the 

juvenile court shall proceed in conformity with all the provisions of ICWA. If, on the 

other hand, none of the tribes make such claims following new notices, or the court 
24

concludes the Department’s efforts at compliance were adequate, the inapplicability 

finding and the order terminating parents’ parental rights and adopting a permanent plan 

as to the children shall be reinstated. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.